HCFA Makes No Distinction Between Employee and Independent Contractor Physicians

Many of you are aware of AAEM's recent efforts in convincing HCFA that
corporate entities should not be able to shield the billings and payments
made in the name of the independent contractor emergency physician from
that physician. In letters to AAEM, and in response to questions offered
by the emergency department staffing industry, HCFA has categorically
stated that since the individual emergency physician is the one accountable
for any service provided to a Medicare beneficiary, they have the right
to know what is being billed and paid on their behalf.

Since these pronouncements, many of AAEM's detractors have called our
involvement in these events a "hollow victory" because contract
groups would still be able to work their way around the wording of HCFA's
ruling by making their independent contractor physicians employees of
the management group. Indeed, it seems that several groups have begun
just such a transition.

The good news for the rank and file is that AAEM has followed up on this
important issue with HCFA and have received confirmation that, independent
contractor or employee, there is no real distinction in the rights a physician
has to see what their management company is billing on their behalf. The
following letter sent to AAEM from HCFA addresses this idea specifically.

I am responding to your December 8, 1997 letter to Mr. Mike Meister
of our Office of the General Counsel concerning the rights of employed
physicians versus the rights of independent contractor physicians. Specifically,
you are asking if an employed physician has the same right as an independent
contractor physician in reviewing bills that are being submitted on
behalf of the services provided by the physician.

The Health Care Financing Administration believes that an employed
physician has the same right as an independent contractor physician
in reviewing bills that are being submitted on the physician's behalf.
Thus, if an employer refuses to disclose billing information to one
of its employed physicians, then the physician has the right to contact
the appropriate Medicare carrier and get this information under the
Privacy Act. Therefore, we agree with your position, that an employed
physician has the right to review what is being billed and paid on the
physician's behalf.

If the issue is brought up by the emergency department staffing industry,
we will inform them that employed physicians are entitled to review
what is billed and paid on their behalf, and that they should disclose
this information to a physician that provides services for which the
organization bills, regardless of whether the physician is an employee
or an independent contractor. If you should have any further questions
regarding this matter, you may contact David Walczak at (410) 786-4475.
Thank you for your concern.

Hollow victory? Hardly. AAEM has worked diligently since its inception
to bring this recognition to our specialty, that the individual practicing
emergency physician is entitled to see what is billed on his or her behalf.
In doing so, individual emergency physicians have been economically empowered
with important leverage at the negotiating table. Armed with the knowledge
of the true value of the services they provide, and the amount that has
previously been drained away as a "management fee," AAEM has
given emergency physicians the opportunity they have been waiting for
to take control of their own livelihoods.

What's next? Well, in addition to working with the AMA to adopt resolutions
that mimic the language of these HCFA decisions, AAEM is working to prove
its contention that the forced splitting of fees with contract groups
and other "senior" emergency physicians is a violation of the
anti-kickback statutes that exist in Medicare and other regulations. In
a letter to the Inspector General of the United States, we have argued
that if the amount of a physician's fees that are taken exceed the fair
market value of what is given in return, the arrangement constitutes a
fraudulent and unfair business practice. Stay tuned for further developments
in this area.